Read the terms of reference here.
The expanded scope for Phase 2
The detailed terms of reference released last week largely mirror the Minister’s previous indications as to the revised scope of the further phase of the Inquiry, providing that the inquiry must review certain “key decisions” made by the Government in New Zealand’s response to COVID-19 during 2021 and 2022. “Key decisions” is defined as being any decision that:
- has a potential or actual significant impact on large numbers of people or groups of people; or
- has a significant cost at a national or regional level (or both).
The key decisions that the Commission is empowered to examine are only those related to:
- the use of vaccines (including the use of vaccine mandates, the approval of vaccines, and vaccine safety);
- the use of lockdowns (including nationwide lockdowns and the extended Auckland/Northland lockdowns in September 2021); and
- the development of testing and tracing technologies and non-pharmaceutical public health materials (including the impact of private sector involvement or non-involvement).
In examining relevant key decisions, the Commission is required to assess a number of wide-ranging matters by reference to New Zealand’s circumstances, “what was known at the time”, and relevant decisions made by comparable jurisdictions. The matters to be examined in respect of key decisions are:
- whether the decisions were sufficiently informed by advice on any social and economic disruption those decisions were likely to cause, particularly the effect such decisions might have had on social division and isolation, health and education, and inflation, debt, and business activity.
- whether the decisions reflected the advice that was given to decision makers at the time;
- whether the decisions took account of the experience and evolving practices from comparable jurisdictions;
- whether the decisions struck a “reasonable balance” between COVID-19 public health goals and minimising social and economic disruption; and
- whether the decisions produced “unforeseen consequences”.
Limits on the scope of Phase 2
Notwithstanding the expanded scope of inquiry for the second phase, the terms of reference sets exclude from its scope a number of matters which were also excluded from Phase 1, including:
- particular clinical decisions made by clinicians or by public health authorities during the COVID-19 pandemic;1
- how and when the strategies and other measures devised in response to COVID-19 were implemented or applied in individual cases;
- particular decisions taken by the Reserve Bank’s independent monetary policy committee during the COVID-19 pandemic.
In addition, while the Inquiry is no longer prohibited from examining “the operation of the private sector” as it was for Phase 1, consideration of the operation of individual private sector businesses is excluded, except where those businesses delivered services integral to a pandemic response.
The varied extent to which the Commission can examine private sector issues and the exclusion of decisions made by the Reserve Bank from the scope of the inquiry for the second phase are both of particular interest given that the inquiry is required to consider the impact key decisions might have had on inflation, debt and business activity during that period.
New Commissioners
The Minister has confirmed the appointment of Commissioners for the second phase of the Commission (with resignation of the original Commissioners following the delivery of their report by 28 November this year having already been signalled). Grant Illingworth KC, an Auckland-based barrister specialising in litigation who was recently appointed as a transitional Commissioner for the conclusion of the first phase, will Chair Phase 2. Public and economic policy professional Judy Kavanagh and barrister Anthony Hill have also been appointed as Commissioners for the second phase.
Inquiry procedure
The second phase of the inquiry may begin to consider evidence relating to the matters within its scope from 29 November 2024, with its report to be delivered by 26 February 2026. The Minister of Internal Affairs has noted that “public hearings may be used where appropriate”, marking a deliberate departure from the first phase of the inquiry, which was conducted privately and made interim non-publication orders in respect of all the evidence it received. However, the Minister’s statements about the appropriateness of public hearings will need to be read in conjunction with the inquiry procedure set out in the terms of reference, which expressly states that the inquiry must not “take a legalistic and adversarial approach” and may only conduct public hearings if such hearings will “significantly enhance public confidence”.
Also of interest is the broader relationship between Phase 1 and Phase 2 of the Inquiry. The new terms of reference specifically providing that Phase 2 of the Inquiry must consider the Phase 1 report and any other publicly available material received during that phase, but will not have access to any Phase 1 evidence which has been suppressed or to the internal deliberations of Phase 1.
Comment
The Commission’s terms of reference largely reflect the expanded scope of inquiry previously indicated by the Minister of Internal Affairs, including the ability for the inquiry to conduct public hearings and the appointment of new Commissioners, including a Chair, with significant litigation experience appears to be consistent with a deliberate move towards a more formal and public hearing process. This may also result in a more Court-like hearing approach than adopted in Phase 1, although the inquiry will need to ensure that, consistent with its terms of reference, it does not take an overly legalistic and adversarial approach to evidence gathering for Phase 2.
Kirsty Dobbs and Matthew Gale have significant experience in acting for clients engaging with public commissions of inquiry, including in respect of the recently concluded Royal Commission of Inquiry into Abuse in Care which ran from February 2018 to June 2024.
If you have any questions about the matters raised in this article, please get in touch with the contacts listed or your usual Bell Gully adviser.
[1] It appears that the intent of this exclusion is to avoid individual clinical decisions being examined, but that it was not intended to exclude consideration of systemic issues which might have been driven by clinical decisions.